http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: RAJINDER PERSHAD

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT11/07/1983

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)

CITATION:  1983 AIR  878            1983 SCR  (3) 355  1983 SCC  (3) 452        1983 SCALE  (1)686

ACT:      Prevention of Food Adulteration Act, 1954-Section 16(1) (c)-Food Inspector  sought  to  take  Sample  of  Foodstuff- Disappearance of  shopkeeper from  Shop-Whether  amounts  to prevention from taking sample.

HEADNOTE:      A Food  Inspector visited  the appellant’s grocery shop and demanded  a   sample of dhania for analysis. Leaving the shop on a false pretext, the appellant did not return to the shop for  quite a  long time.  Thereupon after following the requisite procedure  the Food  Inspector took  a  sample  of dhania in the absence of the appellant.      On a charge under Section 16(1)(c) of the Prevention of Food Adulteration Act, 1954 that the appellant had prevented the Food  Inspector from  taking a  sample of the article of food, the  trial court  convicted  and  sentenced  him.  The conviction and  sentence were  affirmed on  appeal. The High Court dismissed his criminal revision petition.      In appeal  to this  Court it  was contended  that  mere disappearance from the shop after the sample was demanded by the  Food   Inspector,  without   anything  more,   did  not constitute an  offence of  prevention of  the Food Inspector from taking a sample.      Dismissing the appeal. ^      HELD: The  appellant had  been  rightly  convicted  and sentenced under  s. 161(1)  (c) of  the Act. The appellant’s disappearance from  the shop  for a  long time,  amounted to prevention of  the Food  Inspector from  taking a  sample in accordance with  the provisions of the Act and the Rules. No other overt act is necessary to constitute the offence. [361 F-H]      Municipal Board.  Sambhal v.  Jhaman Lal, AIR 1961 All. 103; Mam Chand v. State, 1971 Crl. L. J. 1772; Habib Khan v. State of Madhya Pradesh, 1971 M.P. L. J. 883, approved.      Jagannath v.  State of  Madhya Pradesh,  1977 Crl. L.J. 974; Narain Prasad v. State of Rajasthan, AIR 1978 Rajasthan 162 overruled.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 615 of 1981. 356      Appeal by  Special leave  from the  Judgment and  Order dated the  6th May,  1981 of the Punjab & Haryana High Court in Criminal Revision No. 562 of 1979.      Uma Datta,  T.C.  Sharma  and  A.D.  Malhotra  for  the Appellant. R.N. Poddar for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN.  J.   This  appeal  by  special  leave  is directed against the judgment of the Punjab and Haryana High Court, dismissing  Criminal Revision  Case No.  562 of  1979 which was filed by the appellant against the judgment of the Additional Sessions Judge, Gurgaon who affirmed the judgment of the  Chief Judicial  Magistrate, Gurgaon  sentencing  the appellant to rigorous imprisonment for six months and a fine of Rs.  1,000 under  s. 16 (1) (c) of the Prevention of Food Adulteration Act, 1954 as amended from time to time.      We dismissed  the appeal  and confirmed  the conviction and sentence on 5.4. 1983 for reasons to be giving later. We hereby give the reasons.      The charge against the appellant was that when the Food Inspector, Gurgaon,  Sant Lal  Anand  (P.W.2)  went  to  the appellant’s grocery shop at Farrukh Nagar at about 4 p.m. on 27.8.1976 he  prevented P.W.2 from taking a sample of dhania from the  stock kept for sale by slipping away from the shop under some  pretext. The  case of  prosecution was that when the Food  Inspector (P.W.2)  visited the appellant’s grocery shop accompanied  by Dr. Aggarwal, Medical officer Incharge, Primary Health  Centre, Farrukh Nagar (P.W.1) and Dr. Yadav, Chief  Medical   Officer  (Health),   Gurgaon  (P.W.3).  The appellant was found to have stored 6 kgs. of dhania for sale in his  shop. P.W. 2 disclosed his identity to the appellant and demanded  a sample of the dhania for analysis and sought to serve  the notice  Ex P/B  and tendered  Rs. 4.80  as the price of  600 gms.  of dhania  asked for. The appellant went away from  the shop  under  the  pretext  of  passing  urine without accepting  the notice Ex. P/B or the sum of Rs. 4.80 tendered by  P.W.2 and  he did  not come  back to  the  shop though P.Ws. 1 to 3 waited there for about 11/2 hours. There after P.W.2  took a  sample from  the shop in the absence of the appellant  and prepared  the spot  memo Ex.  P/A in  the presence of  P.Ws.  1  and  3  and  subsequently  filed  the complaint Ex.  P/C  in  the  Court  of  the  Chief  Judicial Magistrate, Gurgaon  against the appellant for contravention of s.16 (1) (c) of the Prevention of Food Adulteration 357 Act, 1954 as amended, by preventing him from taking a sample of the article of food.      After the  examination of  P.Ws. 1  to 3  a charge  was framed against  the appellant  for  the  offence  punishable under s.  16 (1) (c) of the Act and he pleaded not guilty to the charge and claimed to be tried.      The prosecution  relied on the evidence of P.Ws. 1 to 3 who deposed  to the  facts mentioned  above.  The  appellant stated when  examined under  s. 313 Criminal Procedure Code, that he  is running  a  cloth  business  at  Delhi  and  had casually visited  his father’s grocery shop at Farrukh Nagar on 27.8.1976  when P.Ws.  1 to  3 came  there and he went to call his  father Uggar  Sain (D.W.  1) and  came back to the shop alongwith  D.W. 1  after about  6 or 7 minutes and that P.Ws. 1  to 3  had gone  from the  shop by  that  time.  The appellant examined his father as D.W. 1 in his defence.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

    The learned  Chief  Judicial  Magistrate,  Gurgaon  who tried the  case rejected  the evidence  of D.W.  1 as  being interested and unreliable and accepted the evidence of P.Ws. 1 to  3 of  whom P.W.  1, however,  could not  identity  the appellant as  the person who went away from the shop without accepting the  notice and  cash tendered  by P.W 2 and found following judgment  of the  Punjab and Haryana High Court in Krisha Lal  & Ors. v. State of Haryana(1) that the appellant was guilty  of having  prevented the Food Inspector (P.W. 2) from taking  a sample  of the  article of food by going away from the shop without accepting the notice and cash tendered by P.W. 2. Accordingly, the learned Magistrate convicted the appellant and sentenced him to undergo rigorous imprisonment for six  months and  to pay  a fine of Rs. 1,000 under s. 16 (1) (c) of the Act.      The conviction and sentence were confirmed on appeal by the learned  Additional Sessions  Judge, Gurgaon  who  found that the appellant was more than 18 years of age at the time of commission  of the offence and was therefore not entitled to the benefit of s. 360 Cr. P.C. in view of s. 20 AA of the Act according  to which s. 360 Cr. P.C. is not applicable to the case of the accused who was more than 18 years of age at the time of commission of the offence. The Criminal Revision Case filed  by the  appellant in the Punjab and Haryana High Court  against   the  judgment  of  the  learned  Additional Sessions Judge,  Gurgaon was dismissed by S.S. Dewan, J. who confirmed the conviction and sentence. Hence, this appeal by special leave. 358      The prevention  of Food  Inspector from taking a sample of an article of food as authorised by the Act is an offence punishable under  s. 16 (1) (c) with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than on thousand rupees.  Mr. Uma Datta, appellant’s learned counsel invited our attention to paragraph 10 of the judgment of the learned Additional Sessions Judge, Gurgaon where it has been found that  the Food  Inspector (P.W. 2) had in fact taken a sample in  the presence  of P.Ws.  1 and 3. But this must be noted that  this was done after the appellant went away from the shop  under the  pretext of  passing urine  and did  not return for about 1 1/2 hours, during which period P.Ws. 1 to 3 waited  for him  at the shop. The finding of fact that the appellant went  away from  the shop  under  the  pretext  of passing urine  when the Food Inspector (P.W. 2) tendered the notice Ex.  P/B and  the cash  of Rs.  4.80 for purchasing a sample of  dhania and  did not return for about 1 1/2 hours, during which  period P.Ws. 1 to 3 waited at the shop for him cannot be  canvassed in this appeal. The learned counsel for the appellant  invited our  attention to  two decisions  and submitted that  the mere disappearance of the appellant from the shop  after  the  sample  was  asked  for  by  the  Food Inspector without anything more did not amount to prevention of the  Food Inspector  from taking the sample. The first of those decisions is of C.P. Sen, J of the Madhya Pradesh High Court in  Jagannath v.  State of Madhya Pradesh(1) where the facts found  were that  when the accused was taking 5 litres of milk in his kothi for sale the Food Inspector stopped him as he  suspected the milk to be adulterated and asked him to accompany him  to the  Municipal office  for taking a sample and that on reaching the Municipal office the accused bolted away leaving  the kothi  of milk, and the learned Judge held that the  accused did  not prevent  the Food  Inspector from taking a  sample simply because he bolted away from the spot and that the Food Inspector was free to take the sample from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

the kothi  of milk  left behind  by the  accused even in the absence of  the accused.  In holding  so the  learned  Judge differed from  the view taken in Municipal Board, Sambhal v. Jhamman Lal(2) where it has been held that the disappearance of the  seller from  the shop  amounts to  prevention of the Food Inspector  from taking  the sample and that over act on the part  of the  seller is  not necessary  to constitute an offence under  s. 16  (1) (b)  of the  Act as  it then stood which corresponds  to the  present s. 16 (1) (c). The second decision 359 relied upon  by the  learned counsel  of the appellant is of the Full  Bench of the Rajasthan High Court in Narain Prasad v. State  of Rajasthan & Anr.(1) where Shrimal, J., speaking for the bench has observed:           "Thus the  consensus of  the opinion of almost all      the High Court barring a few on the point is that s. 16      (1) (b) of the Act makes a person liable to punishment,      who prevents  the Food Inspector from taking the sample      as authorised  by the Act. Section 10 (1) (a) (i) gives      the Inspector  power to  take sample of article of food      from any  person selling  such article. Sub-sec. (2) of      Sec. 10  gives the  Food Inspector  power to  enter any      place where  the article  of food  is exposed for sale.      Sub-sec.  (4)  of  Sec.  10  provides  for  seizure  of      adulterated food. The Inspector has also power to break      open the  door or  any package  in which the article of      food is  kept. For  all the  purposes the Inspector has      power to  exercise the power of search and seizure of a      police officer  under the  Crl. P.C. The Food Inspector      is also  authorised to  exercise  powers  of  a  police      officer under  Section 57 of the Code i.e. to arrest an      offender, if he refuses to tell his name and residence.      Section 11  prescribes the  procedure to be followed by      the Food  Inspector while taking sample. Therefore, the      Food Inspector  can follow  one of  the two  modes; one      where the vendor co-operates, the other when he refuses      to co-operate.  To  prevent  the  Food  Inspector  from      taking a  sample, the  accused must  do something which      makes it impossible for him to take the sample."      The learned  Judges of  the Full  Bench appear  to have held that  some overt  act on  the part  of the seller apart from mere  refusal to  sell the  article of food to the Food Inspector  is   necessary  to   constitute  an   offence  of prevention of the Food Inspector from taking the sample.      On the  other hand,  Mr. R.  N. Poddar, learned counsel appearing for the State of Haryana, invited our attention to two  decisions   and  submitted  that  the  conduct  of  the appellant in slipping 360 away from  the shop  when the  Food Inspector  disclosed his identity and  asked for  sale of a sample of dhania from his grocery shop,  amounts to  prevention of  the Food Inspector from taking the sample as per the provisions of the Act. The first of  those decisions  is  to  H.C.P.  Tripathi,  J.  in Mamchand v. State(1) where the learned Judge has observed:           "The sample had to be taken in accordance with the      provisions of  the Act and Rules thereunder. As soon as      the owner  of the  milk disappeared  from the scene the      Food Inspector  could not  have obtained  the sample as      required under  law. By running away from the place the      applicant did  prevent the  Food Inspector  from taking      sample as required under the Act though not from taking      away the  entire quantity  of the  milk which  the Food      Inspector could  do in  exercise of  his  powers  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    Section 10  (iv) of  the Act.  In the case of Municipal      Board, Sambhal  v. Jhamman  Lal (AIR 1961 AII. 103), it      was held  by a  Division Bench  of this Court that if a      person selling article leaves the shop he prevents Food      Inspector from  taking sample as authorised by the Act.      In the instant case, the applicant left the milk, which      he was  exposing for  sale, and  thereby prevented  the      Food Inspector from taking its sample." A learned  single Judge of the Madhya Pradesh High Court has taken a  similar view  in Habib  Khan  v.  State  of  Madhya Pradesh.(2) In  that case a milk vendor on being accosted by the Food  Inspector kept  his milk  can in  the canteen  and bolted away,  and it  has been  held that  the  milk  vendor prevented the Food Inspector from taking the sample and thus committed an  offence under  s. 16  (1) (b) of the Act as it stood than.  The learned  Judge has observed in his judgment thus:           "The power of taking the sample has been conferred      on the  Food Inspector  so that  he may  prosecute  the      person found selling adulterated food stuff or found in      possession thereof  for the purposes of sale. Now, if a      person bolts away and thus his identity remains undis- 361      closed, the  whole purpose of the exercise of the power      conferred under  section 10  on the  Food Inspector  is      defeated. In  such a case, it will have to be held that      in bolting  away the  person  prevented  the  effective      exercise of the power by the Food Inspector. If this is      so, it  is difficult  to see how the same action on the      part of a known person would make any difference. If he      bolts away,  an additional  burden will  be cast on the      Inspector if he decides to prosecute him for selling or      keeping for  sale adulterated  food articles,  to prove      that the  person who  bolted away  was the  accused and      that the  article left  by him  was in  his possession.      Witnesses may  not be available at the nick of the time      and here,  again, the result would be the same. This is      why it  is necessary  to interpret  the two expressions      "prevents" and  "in exercise  of the  powers under  the      Act" in  the manner  interpreted by  the Allahabad High      Court  in  Municipal  Board,  Sambhal  v.  Jhamman  Lal      (supra)",      We are  of the  opinion that  the view of the Allahabad High Court  expressed in  Municipal Board, Sambhal v. Jhaman Lal (supra)  reiterated in  Mamchand v.  State  referred  to above and  taken by  the  learned  single  Judge  of  Madhya Pradesh High  Court in Habib Khan v. State of Madhya Pradesh (supra) and  the  Punjab  and  Haryana  High  Court  in  the judgment under  appeal in  this case is the correct view and that appellant  in this  case who  bolted away from the shop under the  pretext of  passing urine when the Food Inspector (P.W. 2)  went to  his shop  alongwith P.Ws.  1  and  3  and disclosed his  identity and  tendered the notice Ex. P/B and cash of  Rs. 4.80  and asked for a sample of the dhania kept for sale  in his  grocery shop  without accepting the notice and the  cash prevented  the Food  Inspector (P.W.  2)  from taking a sample in accordance with the provisions of the Act and the Rules made thereunder and that no other overt act is necessary on  the facts  of  this  case  to  constitute  the offence for  which the  appellant  has  been  convicted  and sentenced  and  that  he  has  been  rightly  convicted  and sentenced by the Court below under s. 16 (1) (c) of the Act. We  accordingly,   dismiss  the   appeal  and   confirm  the conviction of the appellant and the sentence awarded to him. P.B.R.                                     Appeal dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

362